Seen to be done: The tribunal took place at the Law Courts in Cardiff (pictured), in public – which allowed friends of Vox Political to hear the case.

The Information Commissioner’s Office and the Department for Work and Pensions have highlighted the weakness of their own case for hiding the number of people who have died while claiming sickness and disability benefits – by failing to turn up at a tribunal on the subject.

They had the opportunity to explain why mortality statistics for people claiming Employment and Support Allowance since November 2011 have been suppressed, at a tribunal in the Law Courts, Cardiff, yesterday (April 23).

But, rather than be grilled on the reasons for their decision by a judge, a specialist in this area of law, and a ‘lay’ person (representing the opinions of right-thinking members of the public), they chose to stay away.

The tribunal had been requested by Vox Political‘s Mike Sivier, after he made a Freedom of Information request for access to the information – and it was refused on the grounds that it was “vexatious”.

The Department for Work and Pensions said he had written an article about his request on the blog, containing the line, “I strongly urge you to do the same. There is strength in numbers.” According to the DWP, this line constituted a co-ordinated, obsessive and protracted campaign of harassment against the department.

One line in a blog article, added as an afterthought – an obsessive campaign designed to “disrupt” the workings of the DWP. It’s ludicrous.

The DWP claimed it had received 23 requests that were similar or identical to Mike’s, in the days following his own, and inferred from this that they were from other members of this fictional campaign. Mike has only been able to track down evidence of seven such requests and, of them, only one mentions him by name. Without a tangible connection to Mike or Vox Political, the case is not made out – and one connected request does not constitute a campaign.

In fact, Mike’s own request was made after he read that a previous request had been refused – that of disability researcher and campaigner Samuel Miller. Mr Miller had published this fact in the social media and expressed that he was “furious” about it, and this inspired Mike to write his own request. Who knows how many other people did the same in response to Mr Miller? Yet he has (rightly) not been accused of starting any conspiracy.

Mr Miller’s original request has now received a reply, after the Information Commissioner’s office ruled that it had been mishandled by the DWP. This reply contained the wrong information and Mike urged Mr Miller to point this out. Clearly Mr Miller’s claim is not being treated as vexatious, even though it has inspired others to follow his example – as Mike’s article shows that he did. The contrast in treatment betrays a clear double-standard at the DWP (and the Information Commissioner’s office, after appeals were made to it in both cases).

Perhaps it is because of this fatal flaw in their logic that neither the ICO nor the DWP saw fit to send representatives to the tribunal. This left the floor free for Mike to make his own case, with nobody to speak against him or cross-examine him. Tribunal members asked questions, but these were entirely helpful in nature – allowing Mike to clarify or expand on his argument.

So the claim that the number of similar requests, received soon after the blog article appeared, indicated a campaign against the DWP was refuted with the simple observation that the subject was of topical interest at the time, because of what had happened to Mr Miller. Mike said an appropriate comparison would be with complaints to the BBC over the now-infamous radio show involving Jonathan Ross and Russell Brand. The corporation received only a couple of complaints from people who listened to the show at the time, followed by thousands from people who heard about it later. Mike asked: “Were all those thousands of complaints vexatious in nature? Were they the result of organised campaigns against Messrs Ross and Brand? Or were they genuine expressions of horror at behaviour they considered to have gone beyond the pale? The BBC accepted the latter choice because logic mitigates in its favour.”

The claim that abusive or aggressive language exhibited by blog commenters indicated harassment that was likely to cause distress to members of the DWP was batted away with the argument that nobody from the department would have seen it if they had not gone looking for it (after reading the FOI request from a Vox Political reader who referenced the blog).

Mike said it would be “like a social landlord gatecrashing a residents’ association meeting, listening to the grievances of the tenants and then saying they are harassing him and he’s not going to service any of their requests for repairs. That is not reasonable”.

The DWP had claimed that actioning the 24 requests it insisted on connecting with Mike’s “could impose a burden in terms of time and resources, distracting the DWP from its main functions”, but Mike showed that this was not true, as an email to the ICO, dated October 21, 2013, makes clear: “We can confirm that the Department does hold, and could provide within the cost limit, some of the information requested.”

Nevertheless, the ICO had upheld the claim, saying on November 27, 2013: “For the DWP to respond to all of the requests, it is not simply a matter of sending an email to 24 people. There is a requirement to collate the information, consider exemptions under the Act which may apply, provide a formal response and then, if necessary refer the decision to an internal review…. The Commissioner considers that 24 requests on the same topic in a few days could represent… a disproportionate use of the FOIA.”

In his speech to the tribunal, Mike responded: “It is reminiscent of the line in the TV sitcom Blackadder The Third, when the title character, butler to the Prince Regent in Georgian times, demands a fortune in order to buy votes in a by-election for a ‘tupenny-ha’penny place’. Challenged on the amount, he responds: ‘There are many other factors to be considered: Stamp duty, window tax, swamp insurance, hen food, dog biscuits, cow ointment – the expenses are endless.’” He said the ICO’s claim “smacks of desperation”.

One aspect that worked in Mike’s favour from the start was the fact that both the DWP and the ICO have accepted that there is a serious purpose to his request – publication of figures showing how many people have died while claiming ESA. This is important because the assessment regime for this benefit has been heavily criticised as harmful to claimants and the government has claimed that it has made changes to decrease any such effect. The only way the public can judge whether this has worked, or whether more must be done to prevent unnecessary deaths, is by examining the mortality statistics, but these have been withheld. This is the matter at the heart of the request and the fact that the ICO and DWP acknowledge this is a major element in Mike’s favour.

Perhaps realising this, the ICO tried to claim that the intention was changed by the volume of requests submitted: “The purpose of the totality of the requests as a whole may have gone beyond the point of simply obtaining the information requested and may now be intended to disrupt the main functions of the DWP.”

It is not reasonable to suggest that the purpose of an action changes, just because other people carry out the same action within a similar time-frame. Mike put it this way: “Millions of people make a cup of tea in the advertising break after Coronation Street; would the Information Commissioner suggest that this was a campaign to overload the national grid?”

With nobody on hand to provide the ICO/DWP side of the case, the hearing ended at around midday, after Mike had been speaking for two hours. He was grateful to be supported by his McKenzie friend, Glynis Millward, who provided help and advice, and by a group of Vox Political readers who attended to hear the case.

Now the bad news: No decision was handed down on the day. The tribunal judge explained that the panel must now think about the issues raised and discuss their findings. He said they would aim to provide a full, written decision within 21 days.

It is interesting to note that Mr Miller has acted on Mike’s advice and has been advised that a revised response to his request should be with him soon.

If this response contains updated information under the same headings as the original ‘ad hoc’ statistical release provided by the DWP in July 2012 (and from which we derived the 73-deaths-per-week figure that shocked so many people at the time), then a decision by the tribunal to release the same information may seem redundant. In fact, it is possible that the DWP may provide the information to Mr Miller, simply to spite Mike.

But this would be yet another misunderstanding of what this case is about. Mike doesn’t care who gets the mortality statistics first; for him, it is not about who gets to say they were the one who forced the government into submission – this is about getting the information out to the public, so the people can decide whether ESA does more harm than good.

The tribunal’s decision will still be important as it will establish whether the DWP – and other government departments – will be able to manipulate the principles behind the Freedom of Information Act to avoid providing politically inconvenient information in the future.

In Mike’s opinion, a decision in the government’s favour would effectively turn the Act into a dead letter.

Mike many many thanks I have been trying since 4.00 a.m. this morning to get an update. You must be shattered as for the many we thank you so much for what you have done hope and pray it has the desired affect. What one has to do to get justice in this god forsaken country is beyond beggars belief.

I once went to an Employment Tribunal after my employer had made me redundant and not paid me for several weeks of work I had completed. On the appointed day no representative from my previous employer turned up to dispute my claim and no written (or other) response had been made previously by my employer in respect to my compliant. The judge therefore found in my favour and, eventually, I received the monies owed.

To be honest if the DWP didn’t even bother to send a civil servant to explain the departments case, I really cannot see how on earth any judge could rule in favour of keeping the requested statistics and data private in perpetuity.

Surely now we will all learn the truth of this matter, as bad as it undoubtedly will be.

Well done Mike!! We are all grateful to you for all your efforts in this matter, and sincerely hope it results in a positive conclusion. The non attendence of the other parties speaks volumes. I think we should be pushing for figures up to the end of 2013 now also. Has Samuel Miller submitted to the UN human rights officer as yet?

I would wait until after we get the tribunal’s judgement, before asking for the 2013 figures. It will be much easier to secure those figures if the tribunal has returned a favourable decision, because the DWP will not be able to say it is planning to publish the figures in the future (as it did in this case – inaccurately, in my opinion) and there will be no opportunity to claim that it does not hold the figures (you can see from the article that it does).

Yes that makes sense. I was just thinking a larger figure might have a greater impact, although i hope to God it’s not too large..One is enough. I remember raising the issue with my MP back in 2007 about how many had died going through the WCA, and warned her then, that there would be an increase in self harm if they kept this policy going, but never did get a response.

Excellent work…
We NEED this to be picked up by the main stream media, (the ones that are not on the government’s pay roll), so that the rest of the country can see what is happening here and can make their own judgement. Also so the DWP can be called to account to answer the questions and be held accountable for this gross misuse of power.

Their failure to turn up is shameful but utterly unsurprising. Did the tribunal offer any censure to the DWP? Will they? I hope the department don’t try to influence the tribunal now or be allowed any further contact with them before they deliver their findings. They’ve lost their opportunity. Perhaps they can be questioned on this repeated obfuscation, evasion and contempt by the select committee next time they meet (Hodge already knows what they’re like!)? Oh and BTW, HUGE thanks Mike!

You are right Mike. It doesn’t matter who gets the info first, only that we do get the info. You are also right that it does matter that the government are made to comply with the FOI Act and that the ICO and tribunals support this.

Well done Mike,
After watching the excellent New Worlds on channel 4,( I think it was the conclusion to the Devils Whore shown a couple of years ago, also an excellent drama.) In the last episode, one of the main characters held up his right hand and came out with this quote, or something similar.
” May this hand be the enemy of Tyrants and a friend to Liberty”. Well Mike I offer this hand in friendship and camaraderie, Thank you on behalf of this disabled person and I am sure a few thousand more besides. The TRUTH must out, and one day it will.

Thank you, Mike, for your outstanding efforts in this matter. I agree that it is best to wait for the tribunal’s judgement before requesting the 2013 figures.

however if the public in general stay deaf on this topic then nothing will change on the contrary things could get much worse as it will then be kept a secret from the public and knowing it will be kept a secret bar just a few of us in the know i would expect more deaths to continue

the only chance of saving lives in the future would be to have a government that cared and that with regret is not forthcoming in my lifetime so we will be going round in circles with the sick and disabled lives at risk on a day to day basis

at least mike you put the message across to a tribunal’ who up to that point had not a clue what you were on about and now they do so yes you have done well just another 60 million people to convince thou

So they couldn’t even wheel out an underling as IDS does so often when under scrutiny. It speaks more loudly of a vexatious campaign by the DWP to deny the legitimate rights to the people of this land. I hope the Hodges & her fellow MPs are aware that the DWP treats the courts with such contempt, and seek answers in their committees.

I know from past experience what it takes to speak at tribunals, and it is exhausting. You must take a rest, and feel the glow of satisfaction of bringing it this far, having done the right thing for so many who have no voice of their own. We all owe you a debt, whatever the outcome. Saying “well done” seems a little lacking somehow, but you know you have our deep gratitude.

Having made a Freedom of Information request for those very statistics, I was told by the respondent that the DWP were no longer keeping those numbers. Furthermore, I was accused of making a ‘vexatious’ request designed to harass WP staff and interfere with their work.

So if they truly aren’t maintaining records on deaths, it seems they wouldn’t have passed the information on to me anyway. It seems that the DWP have something to hide whichever way you look at it.

Well done. I share the optimism of others that the DWP’s failure to attend the tribunal is a de facto acceptance of your case. We shall see. I totally admire your determination to hold this despicable Government to account while it tries to sell a 21st century version of ‘Arbeit Macht Frei’ to the country.

Reblogged this on Beastrabban’s Weblog and commented:
Mike here presents his account of the case he presented to the Information Tribunal against the claim of the DWP and the Information Commissioner that his FOIA request was ‘vexatious’. He refutes their allegations. Neither the Information Commissioner nor the DWP turned up at the tribunal. In certain courts, if the opposing party does not turn up, then the case is awarded to the person who has. You hope the same principle will apply here, with the non-appearance of the Information Commissioner and the DWP tacit admission by them that they were wrong. However, this is Britain in the 21st Century, and so it cannot be taken for granted. We hope, however, that this will be the case, and that Mike or Samuel Miller, who originally requested the information, will receive it before too long.

Thank you Mike for speaking out and seeing it through… Does anyone know that when the figures are revealed which we all know are through the roof…will those responsible for the Death Total be arrested .charged and sent to prison?

Well played, Mike – I’m sure you’d have tore a hole as big as the grand canyon in any case the DWP’s reptiles would’ve made….Had they turned up, that is!

However…..

The cynic in me believes (Perhaps) that behind closed doors, there are shady deals that MIGHT be being done (Promotion of the adjudicators in the event of a favourable decision for the Govt, for example)

Or am I just being over-paranoid? I don’t know…..But I’m hopeful for a positive outcome, as well as profusely grateful for all the hard graft you’ve put into this, good sir 🙂

It’s mightily appreciated – and from someone fortunate enough to be in good health.

I don’t have any reason to believe undue enticements or pressure are being placed on the tribunal. It would be very much out of order to suggest that, when they haven’t even announced their decision yet.

As I’ve said, I’m hopeful of a positive outcome. I haven’t said there IS any enticements/ coercion going on.

No disrespect to the court appointees or your good self, but there’s been so many judgements over the years that have left me scratching my head, that my cynicism reigns prevalent.

And the judges who’ve made those decisions have gone on to be ‘promoted’.

Having read the post from thelovelywibblywobblyoldlady, I’m slightly more at ease, although as someone with a first-hand knowledge of tribunals & the machinations of certain processes (With a judge(s) who also seemed acquiescent during the hearing) part of me will remain sceptical until there’s a (favourable) outcome.

Hopefully a decision won’t take too long; as (like everyone here) I adamantly believe the DWP’s case is frivolous at best – downright deceit at worst.

Having assisted Mike on the day, I can tell you he was superb; he stated his case eloquently and coherently. The judge and tribunal members listened intently and took copious notes. The judge (a very pleasant chap) took Mikes point that DWP/ICO’s case was not made out without there being direct mention of Mike or his blog by the other 23 (alleged) requesters. There was no causal link in effect.
As Mike has mentioned, the judge focused on the “serious purpose” aspect of the request. This is important as serious purpose can have the public interest test applied to it, whereas if a public authority deems a request vexatious within the provisions of section 14 of FOIA 2000, then the authority does not need to apply the public interest test.
The fact that DWP/ICO failed to send a representative to the hearing is a gift really. Tribunals have an inquisitorial role and will ask questions of the appellant (Mike) and the respondent (ICO/DWP) Of course, with no public authority representative present, then the tribunal can only rely on Mike’s oral evidence.
It’s difficult to say with certainty if Mike will be successful, however, I think the fact that the tribunal did not make a decision on the day is good news, because they will now go and discuss and research and provide a full written decision in the next few weeks.

I’m thinking the fact that the DWP failed to show up should surely act in Mike’s favour? He had the floor, without the need to consider the DWP or any other representative and I’m confident that the Tribunal will carefully consider the evidence and the fact that there is very much a public interest in this matter.

at the end of the day it will be how mike made his case as to how hundreds of people have died in going through the welfare reform process

the case with DR Harold shipman is a case in hand did he kill his patients ? The DWP might well say he helped his patients as there no longer suffering ?

The same with IDS he will say there better off no longer in pain we have done right by them and found them fit for work yes some have died yes hundreds have died but a few are back in full time work and thats a blessing

we have sacrificed the lives of many for the few the question is should IDS have that power ? and if not how can we protect the sick

if nothing is done like dr shipmen he could go on to kill many and hide saying it’s only a few deaths on a monthly basis isn’t that normal ?

It’s not in contempt, but it does mean that the tribunal will only be able to use the ICO’s written evidence when considering its side of the case, and will not have had the opportunity to question a representative. Written evidence carries much less weight than evidence given in person, when it is possible to ask questions and establish an understanding of that person’s case. So non-appearance at a tribunal hugely weakens anybody’s chance of success.
That being said, I’m not breaking out the champagne yet; I’ve had too much experience of the government twisting a situation to suit itself. We must wait for the tribunal’s decision.
If that decision is in my favour, then we will still have to see if the DWP actually offers up the information. If it doesn’t, it will be in contempt of court – and that will be a very serious matter indeed.

“That being said, I’m not breaking out the champagne yet; I’ve had too much experience of the government twisting a situation to suit itself. We must wait for the tribunal’s decision.
If that decision is in my favour, then we will still have to see if the DWP actually offers up the information. If it doesn’t, it will be in contempt of court – and that will be a very serious matter indeed.”……….

One more reason why I’m sceptical.

How many times have the DWP ignored the courts since 2010?

They’re almost a law unto theirselves,…….Withdrew hope from millions, they have.

Thanks for clarifying Mike. Reading what Yosserian Hughes wrote after me, how is it the Government is allowed to ignore the courts? What allows it to do this? Or perhaps the question is, why do not the courts enforce their rulings with more clout? What makes the Government immune to the Law of the Land?

Well done Mike for speaking your truth. Hopefully the tribunal will rule in your favour and get the figures released. You are being brave like a knight of old. Thank you for all disabled people we need a voice and the killing has to stop. Every life is sacred. Love Rose-Marie

Hi Wonder man ! Your achieving so much for the few I am ecstatically joyous. You have made an old man very very happy . A really fantastic result on your part. You have as one member of our species triumphed against the beasts of inhumanity. For that I Thank you Mike !
I have for the first time made a small donation to enable you continue your blogging & I have also just downloaded your e book. One day I hope to meet you in person if you are ever in North Wales then a lunch & or dinner awaits you . This shall be my treat & privilege for giving to us people in the disability world a real hero.
Mike Sivier author of VoxPolitical I salute you!

Late to this, but I wanted to say thank you to you for going after it, and to Mr. Miller too, of course. It’s incredibly important that this information is made public. I’m just glad there are campaigners like you around. I have the will, but not the mental, emotional or physical stamina and capacity to do these things.

It speaks volumes about the mindset of the people holding the information that they consider requests by more than one individual to be “vexatious” when logically, it’s just an indicator of how much public interest there is in the figures. Officials shouldn’t be surprised to find that more than one person has had the idea to use the FOI act to obtain the statistics. Yes, even twenty-three people.

Perhaps, if this wasn’t about seriously ill and dying people, there’d be more than twenty-three. Most of those who need this information to go public, like me, are literally too ill to chase it.